Werhan on Popular Constitutionalism, Ancient and Modern

This Article examines the contemporary controversy over theories of public constitutionalism through a classical Athenian lens. Theories of popular constitutionalism share in common to varying degrees the project of democratizing the practice of judicial review.

Athens invented the practice of judicial review, and just as in America, it became essential to its democracy. The classical Athenian practice of judicial review aligned precisely with strong theories of popular constitutionalism, that is, theories that largely would transfer the power of constitutional review from politically insulated courts to the People themselves or to their representatives. The article shows how strong popular constitutionalism fit the highly participatory, direct democracy of classical Athens, as well as the theoretical underpinnings and institutional design of the classical democracy. The article argues, however, that because the American institutional design and conception of democracy differ fundamentally from those of the Athenians, theories of strong popular constitutionalism are out of sync with the American system.

The Article argues as well that the comparison between Athens and America suggests that moderate theories of popular constitutionalism hold considerably more promise. These theories would keep judicial review in place, and thus would respect the institutional design of an independent and professional judiciary as the ultimate protector of individual rights for America’s liberal democracy. But these theories also would legitimate public participation in the shaping of the federal judiciary and their constitutional decision-making, and thus to some extent would democratize the exercise of judicial review. The article argues that this balancing between majority rule and the protection of individual rights is true to American constitutionalism, as well as to the founders’ instinct of tempering their Madisonian Constitution with enough of a classical Athenian sensibility to launch the American federal government as an authentically democratic enterprise.